As earlier noted, June 10th was a watershed day in the D.C. Circuit, as three cases remanding District Court criminal proceedings issued. In the second case, Melvin Knight and Aaron Thorpe were charged with the federal offense of being a felon in possession of a firearm, as well as the D.C. Code offenses of conspiracy, assault with a dangerous weapon, kidnapping while armed, burglary while armed, possession of a firearm during a crime of violence, and obstruction of justice. (In the District of Columbia, the U.S. Attorney may prosecute D.C. Code offenses in federal court so long as federal offenses are also charged.) (Slip. Op. at 2-3).

The unanimous panel, in an opinion authored by Circuit Judge Kavanagh, rejected Appellants’ Speedy Trial Act claim and affirmed Thorpe’s 25-year sentence. (Id. at 3-10). Appellants fared better with their claim that sought a remand for ineffective assistance of counsel in plea negotiations. Citing United States v. Mohammed, 693 F.3d 192, 202 (D.C. Cir. 2012), the court explained that “[t]his Court’s typical practice on direct appeal … is to remand ‘colorable’ claims of ineffective assistance to the district court” and to do so “without first substantially analyzing the merits of those claims.” (Slip Op. at 10). In particular, the Court of Appeals agreed that the defense had established a colorable claim that their attorneys had never explained the “wired” plea offers that had been extended to them in the Superior Court, where local charged were first brought and that they would have accepted the offers. (Id. at 1-2, 11).

For its part, the Government argued that the record conclusively established that neither defendant ever intended to plead guilty. It blamed Knight and Thorpe for not contradicting the prosecutor’s in-court statement in the Superior Court proceedings that both defendants had rejected a plea offer. But, Judge Kavanagh wrote, “the Government’s argument does not conclusively resolve the point because the defendants’ in-court silence could be consistent with the defendants’ claim that they did not understand the plea offers.” (Id. at 11).

Next, the Government contended that Thorpe’s attorney confirmed in open court, with the defendants present, that a plea offer had been extended. The Court found that to fall short, for once again, “the record does not reveal anything about plea discussions between the defendants and their Superior Court attorneys – or a lack thereof. We cannot fairly interpret Knight’s and Thorpe’s in-court silence, or the comments of Thorpe’s attorney, without first hearing from Knight’s and Thorpe’s Superior Court attorneys.” (Id. at 11-12). The Court remanded the case for consideration of the ineffective assistance claim.

Howard Katzoff, joined on the brief by Mary Davis and Chris Davis, jointly take home the second prize of the day.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.